Rowell et al. v. Manitoba, 2006 MBCA 14

• Judge: Huband, Kroft and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 12, 2005
• Jurisdiction: Manitoba
• Citations: 2006 MBCA 14;(2006), 201 Man.R.(2d) 227 (CA)

Rowell v. Man. (2006), 201 Man.R.(2d) 227 (CA);

    366 W.A.C. 227

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JA.058

Cosmas Rowell (Rowel) and Devin Davis (plaintiffs/appellants) v. Government of Manitoba (defendant/respondent)

(AI 05-30-06207; 2006 MBCA 14)

Indexed As: Rowell et al. v. Manitoba

Manitoba Court of Appeal

Huband, Kroft and Freedman, JJ.A.

January 26, 2006.

Summary:

Two union members were frustrated by their apparent inability to raise a complaint and seek redress against their respective unions. They sued the Government of Manitoba seeking two declarations. First, that ss. 20 and 31(4) of the Labour Relations Act effectively extinguished a right of action against their respective unions and, therefore, these provisions were unconstitutional by virtue of s. 7 of the Charter. Second, that the Manitoba Labour Board had an institutional bias which rendered it incompetent to impartially adjudicate a claim by an employee asserting unfair representation by his union. A motions judge allowed Manitoba's motion to strike the plaintiff's claim as an abuse of process. The plaintiffs appealed.

The Manitoba Court of Appeal dismissed the appeal and struck the amended statement of claim.

Editor's Note: for other cases involving the plaintiff Rowell see: 175 Man.R.(2d) 178, 184 Man.R.(2d) 7; 318 W.A.C. 7, 195 Man.R.(2d) 72; 351 W.A.C. 72.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Considerations - Bias - Institutional or systemic bias - Two union members sued the Government of Manitoba seeking a declaration that, inter alia, the Manitoba Labour Board had an institutional bias which rendered it incompetent to impartially adjudicate a claim by an employee asserting unfair representation by his union - They argued that an employee member appointed to the panel would be biassed in favour of trade unions and automatically reject a claim by an employee against the union representing him - Further, the employer representative would recognize that rejecting the employee's claim against the trade union ultimately protected the employer - The Manitoba Court of Appeal struck the bias claim as disclosing no cause of action - In the absence of evidence, the statutory requirement of fairness under s. 138(1) of the Labour Relations Act and the personal oath of impartiality under s. 138(10) negated any implication of institutional bias - Whether the member be appointed from the employer list or the employee list, it was to be assumed that the individual would set aside partisan preconceptions and join with colleagues in determining the issues fairly and impartially - See paragraphs 31 to 46.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - Two union members sought a declaration that ss. 20 and 31(4) of the Labour Relations Act effectively extinguished their right of action against their unions for unfair representation in violation of s. 7 of the Charter and were therefore unconstitutional - The impugned sections replaced the cause of action with a right to apply to the Labour Relations Board for relief from an unfair labour practice - The Manitoba Court of Appeal held that the plaintiff lacked standing (public interest or otherwise) to pursue the matter - There was no lis between the plaintiffs and Manitoba - Their complaints were with their unions and the Board - They failed to raise a serious issue as to the validity of the legislation - Their claims came down to a question of money (economic loss) and there was strong authority that economic interests were not covered by s. 7 of the Charter - See paragraphs 47 to 61.

Labour Law - Topic 405

Labour relations boards and judicial review - Boards - General - Duty to act fairly - [See Administrative Law - Topic 2093 ].

Labour Law - Topic 646

Labour relations boards and judicial review - Natural justice - Denial of - Bias - What constitutes - [See Administrative Law - Topic 2093 ].

Practice - Topic 219

Persons who can sue and be sued - Individuals and corporations - Status or standing - Validity of legislation - [See Civil Rights - Topic 8583 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - Two union members were frustrated by their apparent inability to raise a complaint and seek redress against their respective unions - They sued the Government of Manitoba seeking a declaration that the Labour Relations Act effectively extinguished a right of action against their respective unions, and, therefore, violated s. 7 of the Charter - They also sought a declaration that the Manitoba Labour Board had an institutional bias which rendered it incompetent to impartially adjudicate a claim by an employee asserting unfair representation by his union - The Manitoba Court of Appeal affirmed that the plaintiff Rowell's claim was an abuse of process where the issues raised in the current action could have been raised in its prior action against the union and his prior applications for judicial review of the decisions of the Board - The fact that the present action was against a different party, Manitoba, was of no assistance to him - See paragraphs 26 and 27.

Cases Noticed:

Pine Creek School Division No. 30 v. Pine Creek Division Association No. 30 of the Manitoba Teachers' Society (1979), 1 Man.R.(2d) 93 (C.A.), refd to. [para. 42].

Gypsumville District Teachers' Association No. 1612 of the Manitoba Teachers' Society v. Consolidated School District of Gypsumville No. 2461 - see Pine Creek School Division No. 30 v. Pine Creek Division Association No. 30 of the Manitoba Teachers' Society.

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 49].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 50].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man.R.(2d) 81, refd to. [para. 51].

Paulet v. Brandon University Faculty Association et al. (1991), 75 Man.R.(2d) 227; 6 W.A.C. 227 (C.A.), refd to. [para. 51].

Gershman Produce Co. v. Motor Transport Board (Man.) (1985), 36 Man.R.(2d) 81 (C.A.), refd to. [para. 55].

R. v. Werhun (1991), 70 Man.R.(2d) 63 (C.A.), refd to. [para. 56].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 57].

Wittman (Guardian Ad Litem) v. Emmott (1991), 77 D.L.R.(4th) 77 (B.C.C.A.), refd to. [para. 59].

Whitbread v. Walley (1988), 51 D.L.R.(4th) 509 (B.C.C.A.), refd to. [para. 60].

Counsel:

S. Green, Q.C., for the appellants;

E. Szach, for the respondent.

This appeal was heard on December 12, 2005, by Huband, Kroft and Freedman, JJ.A., of the Manitoba Court of Appeal. Huband, J.A., delivered the following judgment for the court on January 26, 2006.